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Soley v. Wasserman

United States District Court, S.D. New York

September 25, 2014

JUDY W. SOLEY, Plaintiff,
v.
PETER J. WASSERMAN, Defendant.

OPINION & ORDER

KIMBA M. WOOD, District Judge.

On October 29, 2008, Plaintiff Judy W. Soley filed this action against her brother, Defendant Peter J. Wasserman, asserting a variety of claims arising out Wasserman's conduct as Soley's financial advisor over the past three decades. Defendant now moves to vacate the Clerk of Court's award of taxable costs to Plaintiff following Plaintiff's judgment award on two of those claims. For the following reasons, the Court DENIES Defendant's motion for vacatur.

I. BACKGROUND

a. Procedural History

On May 10, 2010, Plaintiff filed an amended complaint in this case stating five claims against Defendant: (1) breach of an implied-in-fact contract; (2) breach of fiduciary duty; (3) common law fraud; (4) accounting; and (5) alter ego liability. Thereafter, the Court granted Defendant's motion to dismiss with respect to all but two claims: breach of fiduciary duty and accounting. Soley v. Wasserman, 823 F.Supp.2d 221, 225 (S.D.N.Y. 2011) (Wood, J.). Both of these claims, although somewhat narrowed, remained after the Court denied parts of Defendant's motion for summary judgment. Soley v. Wasserman, No. 08 Civ. 9262, 2013 WL 526732, at *3-8 (S.D.N.Y. Feb. 13, 2013) (Wood, J.). Following a jury trial, the jury awarded Plaintiff $79, 848 in damages on the breach of fiduciary duty claim, and $50, 000 in punitive damages. Soley v. Wasserman, 2013 WL 5780814, at *1 (S.D.N.Y. Oct. 24, 2013) (Wood, J.).

On December 6, 2013, the Court ordered Defendant to account to Plaintiff. Soley v. Wasserman, 2013 WL 6388401 (S.D.N.Y. Dec. 6, 2013) (Wood, J.). Pursuant to that accounting, on May 19, 2014, the Court ordered Defendant to transfer to Plaintiff 1, 333 shares of Apricus BioSciences, and $85, 862 of the Neurobiological Technologies sale proceeds. See (May 19, 2014 Order [Dkt. No. 160]).

b. Recent Proceedings

On July 16, 2014, Plaintiff filed a Bill of Costs and moved the Clerk of Court ("Clerk") for an award of those costs pursuant to Federal Rule of Civil Procedure 54(d). On July 31, 2014, the Clerk awarded Plaintiff $13, 056.15 in taxable costs. (Bill of Costs [Dkt. No. 180] at 1). On August 1, 2014, Defendant asked the Court for vacatur of the Clerk's award, arguing that Plaintiff was not the "prevailing party." (Toefel 8/1 Ltr. [Dkt. No. 181] at 1-2). Alternatively, Defendant sought a reduction of costs, claiming that the Clerk awarded to Plaintiff costs that are not taxable under Rule 54(d), 28 U.S.C. ยง 1920, or Local Rule 54.1. Id. Plaintiff has not responded to Defendant's objections.

On August 19, 2014, Defendant noticed the Court that he was appealing the Clerk's award of costs to the Second Circuit. (Notice of Cross-Appeal [Dkt. No. 188] at 1). Defendant's appeal was taken before this Court had the opportunity to decide the instant dispute.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 54(d) provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." These costs are often referred to as "taxable costs." District courts review de novo a litigant's appeal of a Clerk's award of costs. See Owen v. Georgia-Pacific Corp., No. Civ. 303CV378, 2005 WL 3542407, at *1 (D. Conn. Nov. 28, 2005) (citing In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 453 (3rd Cir. 2000)). The decision to award costs to the prevailing party under Rule 54(d) "rests within the sound discretion of the district court." LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).

"The burden is on the prevailing party to establish to the court's satisfaction that the taxation of costs is justified." John G. v. Bd. of Educ. of Mt. Vernon Pub. Sch., 891 F.Supp. 122, 123 (S.D.N.Y. 1995) (Parker, J.). However, "[a]fter the prevailing party demonstrates the amount of its costs and that they fall within an allowable category of taxable costs, that party enjoys a presumption that its costs will be awarded." Patterson v. McCarron, No. 99 Civ. 11078, 2005 WL 735954, at *1 (S.D.N.Y. Mar. 30, 2005) (Casey, J.) (citations omitted); see also Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001) ("[T]he losing party has the burden to show that costs should not be imposed....").

III. ANALYSIS

a. Defendant's Appeal Does Not Divest the Court ...


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